What May Constitute an ILLEGAL SEARCH?

Under the Fourth Amendment to the Constitution, the people are protected from what the framers called an “unreasonable” search or illegal search. In order to provide a clear definition of what would be considered a reasonable search, the Constitution places several restrictions on the government’s latitude in searching or seizing a person, their home, papers and effects.

Search and seizure and the legal search of property are among the most widely misunderstood rights Americans have. What makes this so unusual is the Fourth Amendment is one of the clearest and most consistently enforced Constitutional provisions in the nation.

So what exactly is a reasonable search?

The Law Itself

The Fourth Amendment reads “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

What should stand out in this amendment are the words “shall not.” This is called an “imperative.” It means the government cannot perform an unreasonable search because it must be declared an illegal search. From a practical standpoint, this means they can’t use any evidence seized during such a search either.

Warrants

The second part of the Fourth Amendment mentions warrants. These are documents issued by a judge giving law enforcement the authority to conduct a legal search of property. In other words, the judge grants permission to perform a reasonable search.

In order to obtain a warrant, an officer or district attorney must demonstrate probable cause, swear under Oath or affirmation they have such probable cause and must be specific when describing what they intend to find and seize.

The Rights Americans Share

The result of this amendment is really rather simple. Any search performed without a warrant is presumed under the Constitution to be unreasonable. Only in the most extreme circumstances will a judge allow evidence seized during such a search to be admissible as evidence. Those circumstances include things like finding evidence in plain sight (where no search took place) or taking evidence as part of a search to preserve the safety of an arresting officer.

Criminal suspects can authorize a search, of course, but unless they do, law enforcement cannot seize anything without a valid warrant.

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